Section 400.650  Searches

 

a)         Searches Not Requiring Probable Cause

 

1)         General Rule.  Evidence obtained from reasonable searches not requiring probable cause conducted pursuant to this subsection (a) is admissible at trial when relevant and not otherwise in admissible under this Section or the U.S. Constitution as applicable to the armed forces.

 

2)         Border Searches.  Border searches for customs or immigration purposes may be conducted when authorized by Act of Congress.

 

3)         Searches Upon Entry or Exit from Illinois National Guard Installations, Aircraft and Vessels Abroad.  In addition to the authority to conduct inspections under Section 400.645, the Adjutant General or any commander to whom he or she delegates authority, may authorize appropriate personnel to search persons or the property of those persons upon entry to or exit from the installation, enclave, aircraft or vessel to ensure the security, military fitness, or good order and discipline of the command.  These searches may not be conducted at a time or in a manner contrary to an express provision of a treaty or agreement to which the United States is a party.  Failure to comply with a treaty or agreement, however, does not render a search unlawful within the meaning of Section 400.645.  A search made for the primary purpose of obtaining evidence for use in a trial by court-martial or other disciplinary proceedings is not authorized by this Section.

 

4)         Searches of Government Property.  Government property may be searched under this Section unless the person to whom the property is issued or assigned has a reasonable expectation of privacy in the government property at the time of the search.  Under normal circumstances, a person does not have a reasonable expectation of privacy in government property that is not issued for personal use.  Wall or floor lockers in living quarters issued for the purpose of storing personal possessions normally are issued for personal use, but the determination as to whether a person has a reasonable expectation of privacy in government property issued for personal use depends on the facts and circumstances at the time of the search.

 

5)         Consent Searches

 

A)        General Rule.  Searches may be conducted of any person or property with lawful consent.

 

B)        Who May Consent.  A person may consent to a search of his or her person or property, or both, unless control over that property has been given to another.  A person may grant consent to search property when the person exercises control over that property.

 

C)        Scope of Consent.  Consent may be limited in any way by the person granting consent, including limitations in terms of time, place or property and may be withdrawn at any time.

 

D)        Voluntariness.  To be valid, consent must be given voluntarily. Voluntariness is a question to be determined from all the circumstances. Although a person's knowledge of the right to refuse to give consent is a factor to be considered in determining voluntariness, the prosecution is not required to demonstrate that knowledge as a prerequisite to establishing a voluntary consent.  Mere submission to the color of authority of personnel performing law enforcement duties or acquiescence in an announced or indicated purpose to search is not a voluntary consent.

 

E)        Burden of Proof.  Consent must be shown by clear and convincing evidence.  The fact that a person was in custody while granting consent is a factor to be considered in determining the voluntariness of consent, but it does not affect the burden of proof.

 

6)         Searches Incident to a Lawful Stop

 

A)        Stops.  A person authorized to apprehend under Code Section 7 and others performing law enforcement duties may stop another person temporarily when the person making the stop has information or observes unusual conduct that leads him or her reasonably to conclude in light of his or her experience that criminal activity may be afoot.  The purpose of the stop must be investigatory in nature.

 

B)        Frisks.  When a lawful stop is performed, the person stopped may be frisked for weapons when that person is reasonably believed to be armed and presently dangerous.  Contraband or evidence located in the process of a lawful frisk may be seized.

 

C)        Motor Vehicles.  When a person lawfully stopped is the driver or a passenger in a motor vehicle, the passenger compartment of the vehicle may be searched for weapons if the official who made the stop has a reasonable belief that the person stopped is dangerous and that the person stopped may gain immediate control of a weapon.

 

7)         Searches Incident to a Lawful Apprehension.  A person who has been lawfully apprehended may be searched.

 

A)        Search for Weapons and Destructible Evidence.  A search may be conducted for weapons or destructible evidence, in the area within the immediate control of a person who has been apprehended.  The area within the person's "immediate control" is the area the individual searching could reasonably believe that the person apprehended could reach with a sudden movement to obtain the property; provided, that the passenger compartment of an automobile, and containers within the passenger compartment, may be searched as a contemporaneous incident of the apprehension of an occupant of the automobile, regardless whether the person apprehended has been removed from the vehicle.

 

B)        Examination for Other Persons

 

i)          When an apprehension takes place at a location in which other persons might be present who might endanger those conducting the apprehension and others in the area of the apprehension, a reasonable examination may be made of the general area in which the other persons might be located.  A reasonable examination under this subsection (a)(7)(B) is permitted if the apprehending officials have a reasonable suspicion based on specific and articulable facts that the area to be examined harbors an individual posing a danger to those in the area of the apprehension.

 

ii)         Apprehending officials may, incident to apprehension, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of apprehension from which an attack could be immediately launched.

 

8)         Searches Within Jails, Confinement Facilities, or Similar Facilities.  Searches within jails, confinement facilities, or similar facilities may be authorized by persons with authority over the institution.

 

9)         Emergency Searches to Save Life or for Related Purposes.  In emergency circumstances to save life or for a related purpose, a search may be conducted of persons or property in a good faith effort to render immediate medical aid, to obtain information that will assist in the rendering of medical aid, or to prevent immediate or ongoing personal injury.

 

10)        Searches of Open Fields or Woodlands.  A search of open fields or woodlands is not an unlawful search within the meaning of Section 400.635.

 

11)        Other Searches.  A search of a type not otherwise included in this Section and not requiring probable cause under subsection (b) may be conducted when permissible under the U.S. Constitution as applied to members of the armed forces. (Il. Mil. R. Evid. 314)

 

b)         Probable Cause Searches

 

1)         General Rule.  Evidence obtained from searches requiring probable cause conducted in accordance with this subsection (b) is admissible at trial when relevant and not otherwise inadmissible under this Section.

 

2)         Definitions.  As used in this subsection (b):

 

A)        "Authorization to Search" means an express permission, written or oral, issued by competent military authority to search a person or an area for specified property or evidence or for a specific person and to seize that property, evidence or person. It may contain an order directing subordinate personnel to conduct a search in a specified manner.

 

B)        "Search Warrant" means an express permission to search and seize issued by competent civilian authority.

 

3)         Scope of Authorization. A search authorization may be issued under this subsection (b) for a search of:

 

A)        Persons.  The person of anyone subject to military law or the law of war wherever found;

 

B)        Military Property.  Military property of the United States or the Illinois National Guard, or nonappropriated fund activities of U.S. armed forces, wherever located;

 

C)        Persons and Property Within Military Control.  Persons or property situated on or in a military installation, encampment, vessel, aircraft, vehicle, or any other location under military control, wherever located.

 

4)         Power to Authorize.  Authorization to search pursuant to this subsection (b) may be granted by an impartial individual in the following categories:

 

A)        Commander.  A commander or other person serving in a position designated by the Adjutant General as either a position analogous to an officer in charge or a position of command, who has control over the place where the property or person to be searched is situated or found, or, if that place is not under military control, having control over persons subject to military law or the law of war; or

 

B)        Military Judge.  A military judge or magistrate if authorized under regulations prescribed by the Adjutant General.  An otherwise impartial authorizing official does not lose the character merely because he or she is present at the scene of a search or is otherwise readily available to persons who may seek the issuance of a search authorization; nor does such an official lose impartial character merely because the official previously and impartially authorized investigative activities when these previous authorization is similar in intent or function to a pretrial authorization made pursuant to the laws of  the jurisdiction where the search is to be conducted.

 

5)         Power to Search.  Any commissioned officer, warrant officer, petty officer, noncommissioned officer, and, when in the execution of guard or police duties, any criminal investigator, member of the Air Force security police, military police or shore patrol, or person designated by proper authority to perform guard or police duties, or any agent of any such person, may conduct or authorize a search when a search authorization has been granted under this subsection (b) or a search would otherwise be proper under subsection (b)(7).

 

6)         Basis for Search Authorizations

 

A)        Probable Cause Requirement.  A search authorization issued under this subsection (b) must be based upon probable cause.

 

B)        Probable Cause Determination.  Probable cause to search exists when there is a reasonable belief that the person, property or evidence sought is located in the place or on the person to be searched.  A search authorization may be based upon hearsay evidence in whole or in part.  A determination of probable cause under this subsection (b)(6)(B) shall be based upon any or all of the following:

 

i)          Written statements communicated to the authorizing officer;

 

ii)         Oral statements communicated to the authorizing official in person, via telephone or by other appropriate means of communication; or

 

iii)        Such information as may be known by the authorizing official that would not preclude the officer from acting in an impartial fashion.

 

7)         Exigencies.  A search warrant or search authorization is not required under this subsection (b) for a search based on probable cause when:

 

A)        Insufficient Time.  There is a reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the removal, destruction or concealment of the property or evidence sought;

 

B)        Lack of Communications.  There is a reasonable military operational necessity that is reasonably believed to prohibit or prevent communication with a person empowered to grant a search warrant or authorization and there is a reasonable belief that the delay necessary to obtain a search warrant or search authorization would result in the removal, destruction or concealment of the property or evidence sought;

 

C)        Search of Operable Vehicle.  An operable vehicle is to be searched, except in the circumstances in which a search warrant or authorization is required by the U.S. Constitution, the Code or this Manual; or

 

D)        Not Required by the Constitution.  A search warrant or authorization is not otherwise required by the U.S. Constitution as applied to members of the armed forces. For purpose of this subsection (b)(7), a vehicle is "operable" unless a reasonable person would have known at the time of search that the vehicle was not functional for purposes of transportation.

 

8)         Execution

 

A)        Notice.  If the person whose property is to be searched is present during a search conducted pursuant to a search authorization granted under this subsection (b), the person conducting the search should, when possible, notify the property holder of the act of authorization and the general substance of the authorization.  The notice may be made prior to or contemporaneously with the search.  Failure to provide notice does not make a search unlawful within the meaning of Section 400.635.

 

B)        Inventory.  Under regulations prescribed by the appropriate authority, and with such exceptions as may be authorized by the U.S. Secretary of Defense, an inventory of the property seized shall be made at the time of a seizure under this subsection (b) or as soon as practicable thereafter.  At an appropriate time, a copy of the inventory shall be given to a person from whose possession or premises the property was taken.  Failure to make an inventory, furnish a copy of the inventory, or otherwise comply with this subsection (b)(8)(B) does not render a search or seizure unlawful within the meaning of Section 400.635.

 

C)        Foreign Searches.  Execution of a search authorization outside the United States and within the jurisdiction of a foreign nation should be in conformity with existing agreements between the United States and the foreign nation.  Noncompliance with such an agreement does not make an otherwise lawful search unlawful.

 

D)        Search Warrants.  Any civilian or military criminal investigator authorized to request search warrants pursuant to applicable law or regulation is authorized to serve and execute search warrants.  The execution of a search warrant affects admissibility only insofar as exclusion of evidence is required by the U.S. Constitution or an applicable Act of Congress. (Il. Mil. R. Evid. 315)